By Stephen C. Stovall, Associate
In the most substantial change in federal labor law in more than 50 years, the National Labor Relations Board (“NLRB”) issued a historic decision on August 25, 2023, laying out a new framework that determines when employers are required to recognize and bargain with a union upon demand.
In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the NLRB issued a modified version of the 1949 Joy Silk doctrine, which required employers to recognize and bargain with a union if there was evidence that a majority of the employees wanted the union to represent them, unless the employer had good faith doubt as to the union’s majority support.
Under the new Cemex framework, unions will be able to demand recognition and bargaining merely by demonstrating majority support through the presentation of signed authorization cards. Cemex eliminates any requirement for unions to file an election petition. Facing a demand for recognition, employers have two choices, either recognize and bargain with the union, or immediately file an election petition of their own with the NLRB. If an employer does not file an election petition, it has now welcomed the union into its business with no vote among its employees.
Of much greater import is the Board’s expressed change to another aspect of labor law dating back nearly fifty-five years. For many decades before 1969, even if an employer committed numerous unfair labor practices in defending against a union’s attempt to organize employees (and, thus, the union as a result lost a representation election), generally the Board was limited simply to order another election. That all changed in 1969.
In NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court ruled that, where the employer’s unfair labor practices were so numerous and serious that a fair re-run election was not possible, the employer would be ordered to bargain with the petitioning union based on a simple showing of majority support as evidenced by signed authorization cards obtained from employees – regardless of whether an election had been held where the employees had rejected union representation! Again, the unfair labor practices committed by the employer had to be so serious as to make a fair re-run election improbable, if not impossible. The Board has drastically changed that standard with Cemex.
Now, if the employer commits just a single unfair labor practice, the NLRB could ostensibly issue a mandatory bargaining order regardless of whether an election petition has been filed by either side. This standard is a dramatic change from the much higher threshold embraced by the Gissel Court and cases following that validated the NLRB’s issuance of bargaining orders only when unlawful conduct made it “improbable” that a “fair election” could be held. The importance of this change cannot be over-emphasized. Cemex means that the slightest misstep by an employer, no matter how innocent, can lead to the employer’s workforce becoming “unionized” notwithstanding the wishes of the employees!
In light of this new standard, it is imperative that employers evaluate their business practices and employees to ascertain weaknesses and susceptibilities. Furthermore, employers should conduct supervisory training on union avoidance to assure that no inadvertent “missteps” (i.e., unfair labor practices) occur. As the old saying goes, “an ounce of prevention is worth a pound of cure”—waiting until the filing of an election petition to take such preventive measures would most likely be too late to avoid a bargaining order.
If you have any questions regarding the implications of the Cemex decision and how it could impact your business, please contact a member of the Barton Labor & Employment Team.
